R v WAA

Case [2008] QCA 87


SUPREME COURT OF QUEENSLAND

CITATION:

R v WAA [2008] QCA 87

PARTIES:

R
v
WAA
(appellant)

FILE NO/S:

CA No 265 of 2007
DC No 48 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:


District Court at Cairns

DELIVERED ON:

11 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2008

JUDGES:

McMurdo P, Muir JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction dismissed

2.   Appeal against sentence allowed

3.   For count 1, the appellant be sentenced to three years imprisonment

For each of counts 4, 5, 6 and 7 the appellant be sentenced to 18 months imprisonment4.   

The terms of imprisonment be served concurrently5.   

The period of 251 days of pre-sentence custody from 18 September 2003 to and including 30 October 2003 and from 8 August 2005 to and including 4 March 2006 to be deemed time served in relation to each of the above sentences6.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICTS – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of maintaining a sexual relationship with a child under 12 years and four counts of indecent treatment of a child under 12 years – where the appellant was acquitted of two counts of indecent treatment of a child under 12 years and two counts of unlawful carnal knowledge of a child under 12 years – where the appellant was the complainant’s  stepsisters’ grandfather – where there were material inconsistencies in the complainant’s evidence in relation to some counts – where there was a recorded pretext call suggesting the existence of a sexual relationship – whether the differing verdicts of guilty and not guilty were reconcilable based on the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the primary judge gave directions to the jury as to the assessment of credibility in relation to the appellant and the complainant – where the primary judge gave directions as to the separate consideration of evidence in respect of each charge – whether the primary judge’s directions were adequate – whether there was a miscarriage of justice due to the absence of a Markuleski direction

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – where the primary judge found the sexual relationship had been maintained for 14 months – where the evidence showed the sexual relationship had only been maintained for about nine months – where the appellant is in poor health – whether the process of calculating the sentence miscarried – whether the sentencing discretion should be exercised afresh

R v CAQ [1999] QCA 197, followed
R v Ford [2006] QCA 142, discussed
R v…

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Details
AGLC
R v WAA [2008] QCA 87
Case
[2008] QCA 87
Decision Date

CaseChat Overview and Summary

The appeal before the court was from a conviction by the appellant, WAA, on one count of maintaining a sexual relationship with a child under 12 years and four counts of indecent treatment of a child under 12 years. The appellant was acquitted of two counts of indecent treatment and two counts of unlawful carnal knowledge of a child under 12 years. The complainant was the appellant’s stepsister. The appeal was against both the conviction and the sentence, with particular focus on the adequacy of the primary judge’s directions to the jury and the calculation of the sentence.

The legal issues before the court were whether the verdicts of guilty and not guilty on different counts were reconcilable based on the evidence, whether the primary judge's directions to the jury regarding the assessment of credibility and the separate consideration of evidence for each charge were adequate, and whether there was a miscarriage of justice due to the absence of a direction akin to Markuleski. Additionally, the court considered whether the sentence calculation miscarried and if the sentencing discretion should be exercised afresh.

The court found that while there were inconsistencies in the complainant's evidence, the differing verdicts were consistent with the evidence presented. The primary judge's directions to the jury were deemed adequate, and no miscarriage of justice was found due to the absence of a Markuleski direction. However, the court found that the primary judge miscalculated the duration of the sexual relationship, which affected the sentence. Consequently, the appeal against the conviction was dismissed, but the appeal against the sentence was allowed. The court ordered a new sentence of three years imprisonment for the first count and 18 months for each of the other four counts, to be served concurrently, with the period of pre-sentence custody to be deemed time served.

The court's final orders were that the appeal against the conviction was dismissed, the appeal against the sentence was allowed, and the appellant was to be sentenced to three years imprisonment for the first count and 18 months for each of the remaining counts, to be served concurrently. The pre-sentence custody period was to be deemed time served in relation to the new sentences.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Appeal against sentence allowed

3. For count 1, the appellant be sentenced to three years imprisonment

For each of counts 4, 5, 6 and 7 the appellant be sentenced to 18 months imprisonment4.

The terms of imprisonment be served concurrently5.

The period of 251 days of pre-sentence custody from 18 September 2003 to and including 30 October 2003 and from 8 August 2005 to and including 4 March 2006 to be deemed time served in relation to each of the above sentences6.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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